'Legal costs threaten freedom of expression'

By Jean Morgan

Associated Newspapers legal chief Harvey Kass has called for a
special scale of costs in libel cases under the Human Rights Act, which
would not lump the litigation in with multimillion pound commercial
disputes.

Speaking at the Protecting the Media IBC UK conference last week,
Kass put forward suggestions to “reduce the chilling effect of
conditional fee agreements [CFA] on freedom of expression.

“The
world has gone mad when the cost of defending one article can equal the
annual salaries of over 100 journalists – enough to wipe out many
publishers,” said Kass.

“A system allowing for costs claims
of approaching £900 an hour [which can translate into total costs of
more than £30,000 per court day], in an area where Article 10 (of the
Human Rights Act)n issues are at stake is, frankly, obscene.”

While
he agreed that the mindset of judges had moved on and there was now a
clearer appreciation of the need for the courts to exercise tighter
control, he believed the system was still “fundamentally flawed”.

“I
genuinely have no objection to famous firms charging their Hollywood
star clients £450 an hour or whatever the client is prepared to pay,”
said Kass.

“However, when it comes to costs recoverable from
media defendants we need a regime that will comply with Convention
obligations whilst not unnecessarily impacting on freedom of
expression.”

Kass talked of a postcode lottery, where leading
libel lawyers were able to charge higher fees depending on their
address – City of London locations being prime earners.

Among his suggestions for reform were:

■ A special scale of costs recoverable from the losing party which
would not lump Article 10 litigation in with multi-million pound
commercial, shipping and property disputes – and would not depend on
the current postcode lottery.

■ The most expensive senior partners and QCs would have a choice in
CFA cases to take a case on “scale” rates, or turn them down and let
the claimant choose a competent lawyer prepared to work on this basis.

■ Experienced criminal lawyers, paid £140 an hour in serious cases like rape, might possibly move in.

■ Cost capping.

Kass
wants a thorough investigation (perhaps using an independent academic)n
to explore whether there is any fundamental reason why a fixed-fee
system could not work in the UK, as it does in France and Germany.

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